Is Affirmative Action Justified?

Affirmative action in college admissions has a long history of being a controversial issue in American politics and is perhaps the most debated educational reform policy. It has both been vilified as racist policy and defended as an anti-racism policy by its detractors and supporters. In this article, James McIntyre and William Gu look to explain why the policy must stay and must go, respectively.

FOR

At the climax of the Oscar-winning movie Gladiator, the evil emperor Commodus stabs the already-restrained Maximus in the back before their final duel. Maximus prevailed anyway. But was it a “fair fight” just because both combatants got swords and armor? Opponents of affirmative action would have you believe that the answer is yes.

This article will argue that race-based affirmative action programs are akin to giving Maximus a sharper sword to make up for his wound. It will do so by analyzing whether affirmative action programs should be legal. In asking this question, one must grapple with three issues: legal, moral, and practical ones. The lines between these are not as sharply defined as a philosopher might like, but the distinction will do for the purposes of this article, which will address each question in turn.

Before diving in, it is worth noting that the defense race-based affirmative action’s legality does not require it to be the best policy option. Indeed, I have argued elsewhere in favor of replacing the current system with one that more heavily weights socioeconomic class [1]. This article will argue that the current system should not be outlawed, but that does not preclude its eventual replacement with something that addresses diversity concerns while also benefiting more types of disadvantaged applicants.

The Supreme Court first grappled with affirmative action policies in the 1978 case Regents of the University of California v. Bakke, in which it struck down racial quotas as a violation of the Constitution’s equal protection clause. Clearly, some forms of race-based affirmative action are unconstitutional. But Bakke allowed colleges to continue using race as an admissions factor in the pursuit of a diverse student body [2].

Affirmative action once again found itself in conservatives’ crosshairs in 2003. The majority of the Supreme Court in Grutter v. Bollinger held that the Constitution "does not prohibit [University of Michigan School of Law’s] narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. [3]" The Court once again affirmed this doctrine in Fisher v. University of Texas II, in which it held that the Court would defer to “reasoned, principled” explanations by university officials about why they needed race-conscious policies to achieve adequate diversity [4].

The Supreme Court has now upheld affirmative actions in principle several times over a 35-year period. Justice Elena Kagan recused herself from Fisher II due to her past work on the case as Solicitor General, something that will not occur again in such cases [5]. It is likely that she would support affirmative action in a future case [6]. This gives affirmative action a majority in the Supreme Court, for now. Until the Trump administration nominates another justice, race-based affirmative action is on safe legal ground.

But has the Supreme Court interpreted the law correctly? Not being a legal scholar myself, I am inclined to defer to the highest court in the land on the matter. With that said, a brief legal analysis is in order. The relevant legal question here is whether affirmative action violates the 14th Amendment’s equal protection clause, which grants every American “equal protection of the laws [7].” How one interprets that phrase is critical. One might argue that it demands “color-blindness,” such that any law explicitly targeting one group for benefit would violate equal protection. Such an austere exegesis flies in the face of originalist jurisprudence--the conservative philosophy that the Constitution should be interpreted as its framers intended--which many opponents of racial preferences hold so dear. According to the Constitutional Accountability Center, "the Framers of the 14th Amendment rejected proposals to prohibit all racial classifications by the government [8]. Indeed, the Reconstruction Congress enacted a long list of race-conscious legislation to ensure equality of opportunity to all persons regardless of race." In other words, the 14th Amendment was never supposed to be read to ban practices like affirmative action, which target racial groups for benefit; equal protection is a more holistic concept than that. I am unqualified to spell out an appropriate interpretation of a broader understanding of equal protection, but the above analysis gives strong reason to doubt that affirmative action overtly violates the 14th Amendment.

The typical justification for affirmative action goes something like this. Blacks, Latinos, and Native Americans have historically faced severe and debilitating discrimination. The stubborn effects of this discrimination trickle down through the generations, unfairly harming their admissions prospects. For instance, if one’s grandparents were denied housing in a neighborhood with good schools due to their race, such effects can trickle down through generations, leaving even 21st-century minorities at a disadvantage.

It is true that Asians and other groups have faced historical discrimination, including Japanese internment and the Chinese Exclusion Act. If proponents of the typical affirmative action defense, described above, were serious about righting historical wrongs, Asians would receive admissions benefits too. But moral arguments for affirmative action do are not go beyond the fact of historical discrimination.

Even if one accepts that race-based affirmative action programs discriminate against Asians and others, it is not sensible to throw out affirmative action for underrepresented minorities. One could argue that colleges are wrong to make up for past discrimination of one group if they do not do so for every historically wronged group. However, righting one historical wrong is some moral progress even if another hundred historical wrongs remain.

One might contend that the above argument collapses because affirmative action not only fails to rectify historical wrongs against Asians but also actively harms them in the admissions process. But the bottom line is that as a group (however one defines that), Asians are not underrepresented at colleges across the country. Catholics faced discrimination for many years in the United States, but no one would argue that this requires affirmative action, because Catholics do not need it as a group. They are not underrepresented. The same is true of Asian Americans.

But what if the whole concept of rectifying historical wrongs is unfounded? Some have argued against reparations for historical wrongs against racial groups in principle, which would undermine the above moral defense of affirmative action [9]. Since there is not enough space to discuss this in much detail, this article will grant the premise that reparations are not morally required for the sake of argument. If historically oppressed groups are not owed any boost today as a result of historical oppression, then morality does not require race-based affirmative action to counter that oppression. But underrepresented minorities face obstacles today in hugely disproportionate amounts compared to other groups. In the United States, black and Latino minors are twice as likely to live in poverty than their white and Asian peers [10]. There are also more likely to attend high-poverty schools, severely handicapping their admissions prospects [11]. Native Americans have a heightened risk for alcohol dependence [12]. And these statistics don’t even account for overt racism experienced on a day-to-day basis whose effects can be pernicious and large. Many students from such backgrounds have overcome enormous hurdles to attain the kinds of SAT scores that affluent white students waltz to with the help of private tutors. In other words, the ones who attain the superior SAT scores to their elite white peers are like Maximus; they overcome brutal circumstances and win anyway. But is that what admissions officers should expect, or does it make sense to account for the handicaps minorities face? Failing to do so would result in colleges missing out on promising students who just couldn’t quite overcome the gap they inherited from birth. That’s a lot of potential down the tubes, given the importance of a college degree in today’s economy. Such a result is counterproductive to admissions that seek capable students.

It is true that many white and Asian students inherit terrible conditions from birth that produce similar admissions handicaps. It is also true that many underrepresented minorities are affluent, and haven’t faced debilitating discrimination. Ideally, affirmative action programs would account for them too. But racial minorities are much more likely to inherit disadvantaged conditions, and experience unique barriers to success, even compared to impoverished white students. Accounting for such impediments with racial preferences is entirely sensible. And colleges shouldn’t leave disadvantaged minorities in the dust just because some Asians and whites face adversity too.

"And colleges shouldn’t leave disadvantaged minorities in the dust just because some Asians and whites face adversity too."

Notice that the above argument does not depend necessarily hold that racial preferences are morally required. But it does contend that morality permits such programs and that there are sensible reasons to implement them besides mere permissibility. Diversity concerns complement this line of argument.

Even excluding the notion of historical injustice, colleges have the right to produce a student body on the basis of characteristics it reasonably believes to be relevant to good education, discrimination charges notwithstanding. Racial diversity fits the bill. Various studies indicate that it both strengthens empathy and reduces prejudice between groups [13]. Diversity also promotes cognitive growth [14]. Empathy, prejudice, and cognitive growth are clearly within a college’s educational mission to help develop students into fully-fledged, autonomous adults who can positively contribute to society. Thus, diversity is within is within a college’s educational mission, too.

Fully examining the benefits of racial diversity for education would require much more space, but they are certainly plausible and substantial enough to shift the burden of proof to the detractors of race-conscious admissions policies. But the pursuit of diversity fails to justify affirmative action if race-conscious admissions policies do not successfully promote diversity. The next section will analyze this issue.

This article has already cited research supporting the notion the racial diversity yields educational benefits. But does affirmative action successfully promote diversity? To answer this, one must answer a few separate questions. First, one must know whether racial preferences promote racial diversity at all. The answer here is easy: the available evidence indicates that they do. For example, after Proposition 209 took effect in California in 1998, thereby banning race-based affirmative action at public colleges, minority enrollment at the University of California system dropped significantly from 1997 figures [15]. Black, Chicano, and Latino admissions rates dropped by 12.5, 9.8, and 5.8 percent, respectively. These reductions were even more drastic at UC Berkeley, where the drops in admissions rates were 59.1, 60.3, and 24.5 percent.This and other evidence indicates that removing racial preferences reduces diversity, defined in this case as minority representation.

Another relevant question is whether students admitted via affirmative action benefits do well in school. The “mismatch” theory, espoused by the late Justice Antonin Scalia, among others, states that a student is harmed by attending a college with academically superior students [16]. This is relevant to the affirmative action debate because proponents of mismatch theory contend that racial preferences send lesser students to rigorous colleges with academically superior students, thereby harming the very minorities that affirmative action seeks to help.

This mismatch argument has mixed empirical support, depending on how one conceptualizes mismatch. Studies revealing that minorities find themselves at the bottom of class rankings are largely irrelevant. The real question isn’t whether minority students at Princeton or Florida State are outcompeting their peers. Instead, what should interest us is whether a student’s life prospects would be superior after attending Florida State than they would be after Princeton. Only if this were the case could one coherently argue that a racial preference at Princeton harms that student. The results on this score are mixed, and the social science is beyond my ability to evaluate. For example, one study found that “less-prepared minority students at top-ranked campuses would have higher science graduation rates had they attended lower-ranked campuses [17].” Another researcher argues that “students were most likely to graduate by attending the most selective institution that would admit them [18].” A prominent longitudinal study did not support mismatch theory [19]. The best epistemic course of action, it seems, is to remain agnostic about mismatch theory.

And even if mismatch theory is correct, there are ample qualified low-income students, many of whom are minorities, who simply do not apply to selective schools [20]. Improving outreach to these students could mitigate any mismatch that does exist. Furthermore, even if mismatch is prevalent enough to be a legitimate concern, that does not mean that we should renounce racial preferences altogether. Richard Sander himself, author of the seminal work on mismatch theory, argues that large preferences are what should worry us [21] [22]. There is room to craft affirmative action programs that minimize the mismatch risk while still remaining attentive to potential pitfalls.

Furthermore, revoking racial preferences might exacerbate the racial gap in collegiate performance that mismatch theorists deploy in support of their view. Minority students constitute a relatively small proportion of most colleges, especially elite ones. This can cause them to feel inadequate (often called “imposter syndrome”) or isolated on campus. Compounded with the enhanced stressors that minorities already experience in disproportionate amounts--discrimination, home stress, etc.--these factors can make it difficult to succeed in college. Admitting minority students in even smaller numbers could worsen the situation by making minority students feel even more isolated. Such added stress is likely to increase the very racial achievement gap that mismatch theorists bemoan.

Since it is clear that racial preferences increase racial diversity, which in turn promotes valuable educational goals like cognitive growth, the answer to the pragmatic question seems to favor proponents of racial preferences. Should mismatch theory turns out to be correct, which is far from clear, diversity and other concerns might outweigh mismatch’s harmful effects.

This article has examined the legality, morality, and effectiveness of racial preferences in college admissions, favoring affirmative action on all counts. Even though racial preferences are not the best way to accomplish campus diversity, if they are legal, moral, and effective, then it seems foolish to argue that Congress or the states should outlaw them.

At the end of the day, debates like this are about what kind of society we want to live in. It is true that a society which values hard work benefits many. But prioritizing diversity above SAT scores on certain educational matters does not undermine hard work; it simply rejects redentialism as a societal ethos. Black, Latino, and Native American applicants work hard too. Many of them must fight poverty and racism to attend college. There is nothing wrong with dismissing the results of a horse race in which minorities too often start in the back.

The more disadvantaged people who attend college successfully, the more upward mobility their respective groups will attain. If we want to live in the sort of country in which a black president isn’t next to miraculous, or in which racial group ceases to debilitate millions of people, then we should promote policies that are conducive to creating such a world. Stripping racial preferences of legal status would set back our pursuit of a world in which race has no harmful role to play.

AGAINST

Why does the son of a Chinatown cook need to get higher SAT scores and earn a better GPA than the son of a black millionaire in order to get into a top college? The answer is race-based affirmative action, a reminder that racist policies affecting millions did not die with Jim Crow.

The affirmative action debate has once again risen to prominence, with the Donald Trump administration mustering the resources of the Justice Department to begin “investigations and possible litigation related to intentional race-based discrimination in college and university admissions [23].”

Good for the Trump administration. While class-based affirmative action has few arguments against it—a student able to afford a $400 an hour private SAT tutor is likely to perform better on the SATs than someone who could not even afford SAT practice tests—race-based affirmative action, is in its essence, racist, and a blot on this great country, a thorn in American meritocracy.

Affirmative action needs to be dismantled because of two main reasons: it favors certain ethnic groups over others—the very essence of racism—and it does not work, often cited by Supreme Court Justice Clarence Thomas as the “mismatch” phenomenon.

A Princeton study found that to have equal chances of admission to private colleges, students who identify as Asian need to score 450 points higher than students who identified as black to have equal probabilities of being admitted to a top private college, out of the 1600 SAT score [24]. Those figures translate to Asians needing to have perfect SAT scores, holding all other factors constant to, to have equal chances of admission as a black student with an 1150 SAT score—a difference that is equivalent to approximately the average SAT score of Stanford and an average state university. Hispanics have less of a point boost than blacks, and whites even less. So who decides the racial order of those scores? Why do blacks need to score less than Hispanics, who in turn score less than whites and then Asians?

Supporters of affirmative action would argue that this ordering is based on the amount of “oppression” certain groups have faced, and the score boosts offset the disadvantages of those groups. But in reality, there is no way to measure “oppression” in a fair way. How do admissions officers quantify “oppression,” and translate that into SAT score boosts for underrepresented minorities?

The racial order defined by affirmative action seems to imply that Asians are the least oppressed group in America, less so than whites, and blacks the most oppressed groups, even more so than Hispanics, who have lower English fluency rates than blacks [25]. These implications simply do not reflect current realities; Asians have been the subject of discrimination in American history, from the Chinese Exclusion Act and the Gentleman’s Agreement to internment camps [26] [27]. Asians and Hispanics, especially those raised within first and second-generation immigrant backgrounds, live in non-English speaking environments, further hampering academic ability. So why do blacks get an advantage over the former two groups? The answer is racism in the form of affirmative action.

Affirmative action has also lead to racial quotas, which harken back to the days when top Ivy League universities, and especially Harvard, would limit the number of its Jewish students, leading to many of the brightest minds in America to be rejected from cultivating their knowledge and maximizing their potentials as contributing citizens [28]. Through affirmative action and an obsession to keep an arbitrarily defined “diverse” student body, many top private colleges, have limited the number of students in each racial group [29]. While quotas are officially illegal, many top colleges have suspiciously maintained steady race proportions in their student bodies, despite fluctuating proportions in applications. These de facto race quotas, strip our country’s brightest minds from environments where they could maximize their potentials.

"These de facto race quotas, strip our country’s brightest minds from environments where they could maximize their potentials."

Affirmative action, in addition to its core as a racist concept, also simply does not work. Much of affirmative action results in mismatch, where while black students are more likely to graduate from more selective institutions, often do so at a great cost. Mismatch is the concept of how underrepresented minorities get placed into colleges with environments where they can neither learn nor compete effectively. Black college freshmen are more likely to pursue STEM disciplines, but mismatch causes them to drop out of those fields at twice the rate of whites. Half of all black college students rank in the bottom 20 percent of their classes, and in law school, where affirmative action is also practiced, in the bottom 10 percent.

Affirmative action also hurts employment prospects, with Justice Clarence Thomas—a black Yale Law School graduate—stating that employers treated black graduates different from white graduates because they thought that black graduates had “special treatment”—affirmative action [30].

Affirmative action has its problems, but the few merits it holds could be better remedied through efforts beginning from primary school instead of the college admissions process. The stereotype threat—in which black students perform worse academically because they believe they as a group perform worse—has been shown to lower black SAT scores, and when conditions are controlled to eliminate the stereotype threat in studies, blacks performed at around equal level to their white counterparts [31]. However, the effect of the stereotype threat is shown to be approximately a fifth of a standard deviation, which should translate to approximately 40 SAT points when using a standard deviation of 194 points for the newly-scaled SAT, far less than the difference of hundreds of SAT points that seemingly exists as admissions standards for different ethnicities [32] [33]. Affirmative action also bandages actual problems in the academic gap between races such as the stereotype threat through a quick boost during the college admissions process when we, as a country, should work through science and decency to eliminate problems such as the stereotype threat at its root.

Affirmative action is the bandage that America—and especially its top private colleges—use to conceal its race problems. This bandage, however, is racist in its preferential treatment of certain groups and has questionable efficacy. The problems that affirmative action attempts to fix—which it badly does—tend to have deeper roots, that may take decades, if not centuries, of change to eliminate. To hasten the elimination of those racial problems, we need to adhere to the idea that people should be judged by the “content of their character,” as Martin Luther King famously put, instead of the color of their skin, an idea that affirmative action opposes.

Going back to the question posed in the first sentence of this article, I hope to see a day when colleges admissions offices—especially admissions in top private colleges—will recognize the hard work, talent, and potential of the Chinatown cook’s son, and judge his worth based his merit, rather than the color of his skin.

REBUTTAL - AGAINST

Since my opponent has divided his pro-affirmative action argument into three section—legal, moral, and pragmatic—I will refute each of those individual sections, focusing on the moral and pragmatic questions.

The entire point of this series of articles is to examine whether affirmative action should be allowed, regardless of its legality. Just because something is legal, does not mean it is just. Leftists always use this argument to debunk conservative-leaning laws and advocate for immigration reform, gun control, among other issues. While I do not know my opponent's stance on those issues, I would like to bring up that if legality is going to be one of the standards to measure a policy’s worth, then it should be applied universally.

On the moral issue, my opponent states that Asians are not underrepresented, and therefore do not need help in the college admissions process. Not being underrepresented does not justify discrimination. No form of discrimination is just. Just because other minority groups have been “more oppressed,” does not mean that discriminating against a group that has been “less oppressed” is justified. This moral question once again brings us back to how college admissions offices measure the amount of “oppression” each group has received. And even within the “Asian” category on college applications, there are many variances between different Asian groups. Southeastern Asians tend to be underrepresented in college compared to Northeastern Asian groups but face the same discrimination in college admissions just because they ticked the “Asian Pacific Islander” checkbox on their applications. There is no way to objectively and fairly measure “oppression,” much less convert it into an SAT score boost.

"There is no way to objectively and fairly measure “oppression,” much less convert it into an SAT score boost. "

My opponent has also argued that because Asians are not underrepresented at colleges, somehow the current affirmative action policy is just. He fails to take into account that objectively, hard work and emphasis education should not be punished but rather rewarded. It is wrong to punish a group that encourages such qualities. In fact, hard work and an emphasis on education overcomes much of the “day-to-day” discrimination by opponent cites; for instance, Nigerian-Americans, are in fact the most educated group in the United States [35]. The hard work of Nigerian-Americans as a group has helped them attain the highest educational achievements at the undergraduate level—with the largest percentage of individuals attending college—but by lumping them together in the underrepresented minority group (URM) in college admissions, they receive admissions boosts that only augments their already-impressive achievements. Nigerian-Americans are anything but underrepresented at colleges, but continue to receive the benefits of affirmative action, hardly fair to other minority groups such as Asian-Americans, or even to poor whites who have drastically lower college attendance rates. The only reason why Nigerian-Americans receive URM status along with other Americans of African descent is because of the color of their skin, and preference based on skin color is the textbook definition of discrimination stemming from racial prejudice. While some of the success of Nigerian-Americans could be attributed to affirmative action, the main reason why Nigerian immigrants, despite coming to the United States with poorer English skills, and less social connections than African-Americans, all while facing the same anti-black discrimination, is because of a culture that promotes hard work and education [36]. “Oppression” is not an excuse in modern-day America; many minority groups have shown that valuing education and hard work can overcome this “oppression.”

On the issue of overrepresentation, while Hispanics make up 17.6% of the US population, at many top colleges in the country, such as Pomona College, UC Berkeley, among others, Hispanics make around at least 20% of the student body [37]. Where are the cries of “overrepresentation” here?

On the question of pragmatism, my opponent argues that minority enrollment has dropped drastically after the ban on race-based affirmative action at California public colleges. My opponent, in this argument, and throughout his article, assumes that diversity must be—almost as if written in stone—one of the principle tenets of a college’s mission. But why is that an assumed fact? Just as a college’s mission should be to educate and inspire academic excellence above other factors, affirmative action, by keeping out the top students in many colleges, chips at this academic mission. As I have argued before, creating equal opportunity could only be fair if it is implemented beginning from kindergarten, not in the form of a temporary boost during the high school senior year college admission process. That way, diversity can be achieved on college campuses, without the unfair use of affirmative action.

A college’s mission should not be prioritized on racial diversity—admitting the best students who could make the best out of their educations and use those skills to make civilization better should be it mission—and affirmative action is a realignment of a college’s values from merit to skin color, to de facto discrimination all in the name of diversity in race.

REBUTTAL - FOR

It is now time to rebut my opponent's ridiculous notion that racial preferences amount to racism. My opponent defines the “essence of racism” as favoring “certain ethnic groups over others.” That is frankly an unsophisticated conception of racism. At its core, racism involves judging one group of people to be intrinsically superior on the basis of their ancestry or skin color. (This article won’t wade into the tumultuous waters involved in defining “race.”) Is it racist for a Chinese school to only hire people who speak Chinese? Such a policy surely favors one ethnic group over another, given the likelihood that Chinese people are more likely to have the Chinese-speaking skills required for a teaching position at the school. My opponent’s view would label that “racism” just because the nature of the qualifications happens to favor one ethnic group over another, but that’s absurd. Speaking Chinese is necessary to further a Chinese school’s educational mission. Similarly, diversity is necessary to further many colleges’ educational missions.

"Similarly, diversity is necessary to further many colleges’ educational missions."

Ironically, the very admissions standards that my opponent praises for constituting “merit” favor one ethnic group over another. On each section of the SAT, for example, underrepresented minorities perform worse [34]. Believe it or not, members of a group that is disproportionately poor struggle to comprehend esoteric words like “adumbrate,” “blandishment,” and “calumny.” Many of them spend time working minimum-wage jobs instead of learning such useless vocabulary. By my opponent’s definition, then, using the SAT as an admissions criteria is racist. And judging from the issues that my opponent has chosen to address, he seems to think that the “meritorious” SAT and GPA should inherently carry more weight than factors like holding a job in the admissions process. Why knowing words like “diaphanous” and being better at the credential-centric, cram-and-flush style of “learning” in many of America’s poorest schools should count for more than holding down an actual job, where not performing well can prevent one’s parents from paying rent for the month rather than the dreaded B-, is beyond me.

Perhaps my opponent would respond by noting that in the above examples, the discrimination isn’t really about ethnicity so much as qualification, if we assume that holding down a job matters less for qualification than those 450 points on the SAT that my opponent references. A white Chinese speaker and a Chinese person who speaks Chinese would be on the same playing field. So let’s take it a step further. Imagine that a Chinese man wanted to attend therapy, but preferred to do so with a Chinese person specifically due to her superior understanding of his cultural background. Is that racist? The man is discriminating on the basis of how a therapist's ethnic heritage influences the therapy sessions, irrespective of the therapist’s qualifications. But it is ridiculous to call that racist, because the therapist’s ethnicity is fully relevant to the objective at hand. The same is true of college admissions, but the objectives involve the social benefits that research reveals diversity to promote: increased empathy, prejudice reduction, and cognitive growth. Racial preferences do not exist to promote one race’s superiority or success over another’s. Rather, they exist to promote higher education’s legitimate mission. There is nothing racist about that.

My opponent correctly notes that affirmative action does not eliminate American higher education’s race problems. In the spirit of eschewing “bandages” in favor of real solutions, it would behoove applicants to remember that the admissions process does not reflect anything about their intrinsic worth as human beings. Colleges have missions, and some people’s admission, through no fault of their own, would not advance those missions as much as others would. My opponent employs the emotionally compelling, but morally impotent example of a Chinatown cook’s son being denied entrance to college. This fine student would surely do well elsewhere, and universities need to do a better job of reaching out to disadvantaged white and Asian students like him. With that said, denying admittance to a Chinatown cook’s son because a minority with a lower GPA got the place instead says nothing at all about his worth. We need to stop thinking about admissions as reflections of intrinsic value and start thinking about it in terms of fit for the given institution's mission.